OF JUDGMENT: 10/06/2016
COUNTY CHANCERY COURT HON. J. LARRY BUFFINGTON TRIAL JUDGE
ATTORNEY FOR APPELLANT: WILSON H. CARROLL
ATTORNEY FOR APPELLEE: JAMES F. NOBLE III
LEE, C.J., FAIR AND GREENLEE, JJ.
This appeal involves the narrow issue of custody-schedule
modification. Richard Wilkerson originally sought to remove
custody of his son from his ex-wife, Tracey Gaddis, but the
chancellor increased his custody time instead. Tracey
appealed. After careful review, we find the chancellor's
decision was supported by substantial evidence. Accordingly,
Richard and Tracey married in 2002. They had one child
together - Logan - born in 2005. The parties divorced in
2008 on the ground of irreconcilable differences. In the
child custody and property settlement agreement, Richard and
Tracey were granted joint legal and physical custody of their
son, with detailed periods of custody. The chancellor granted
Tracey custody during the weekdays, except for Tuesday from 3
p.m. to 8 p.m, when Logan would be with Richard. The
agreement also stated that Richard would have Logan every
other weekend and at the opening of deer season, beginning at
age five. Finally, the agreement divided holidays and special
occasions between the parties.
In 2013, Richard and Tracey entered into their most recent
agreement amending their preceding child custody and property
settlement agreements, all of which have consistently
affirmed that their custody is both joint legal and joint
physical. The modified agreement granted Richard and Tracey
equal time with Logan during the summer on a week-on,
week-off basis. The agreement further stated that Richard
would have Logan every other Wednesday from 5:30-7:30 p.m.
(for church services and related activities) and every first,
third, and fifth weekend, from Thursday after school until
the following Monday. And the agreement provided additional
details to Richard and Tracey's holiday and special
On April 6, 2016, Richard filed a petition to modify the
amended child custody and property settlement agreement.
Richard sought sole physical custody, claiming a material
change in circumstances had occurred that adversely affected
Logan. In the alternative, he sought equal time with Logan on
a year-round basis during the school year. Tracey filed a
motion to dismiss, which the court denied.
The court held a hearing on Richard's petition. Both
Richard and Tracey testified, and Logan was interviewed in
the chancellor's chambers - off the record but with the
court reporter present. At the conclusion of the hearing, the
chancellor determined that there was no material change in
circumstances warranting a change of custody. So he denied
Richard's request for sole physical custody. He also
denied Richard's alternative request for equal time
during the school year. However, the chancellor found
modification of the custodial periods was in the best
interest of the child, noting that the custodial periods were
"in the nature of a visitation schedule." He
changed Richard's alternating Wednesday evening custodial
periods, provided to end at 8 p.m., to overnight. He also
directed that spring break would be divided, with alternating
four and three day periods for each of the parents. The
chancellor also found that Tracey should be allowed to see
Logan on his birthday, if the birthday falls within
Richard's custodial period.
Our review of domestic relations matters is limited.
Chesney v. Chesney, 849 So.2d 860, 862 (¶8)
(Miss. 2002) (citing Montgomery v. Montgomery, 759
So.2d 1238, 1240 (¶5) (Miss. 2000)). The
chancellor's findings of fact will not be disturbed on
appeal if they are supported by substantial credible
evidence. Carter v. Carter, 204 So.3d 747, 756
(¶37) (Miss. 2016) (citing Marascalco v.
Marascalco, 445 So.2d 1380, 1382 (Miss. 1984)). We will
not reverse the decision of a chancery court unless the
chancellor abused his or her discretion, was manifestly in
error, or applied an erroneous ...